The Committee has considered a range of material as part of its inquiry, including the 17 submissions from groups and individuals and evidence from witnesses at the public hearing. The Committee has also taken into account its previous Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Advisory Report on the Allegiance to Australia Bill) that included examination of section 35A of the Australian Citizenship Act 2007 (the Act).
As part of its inquiry, the Committee has identified six key issues relating to the Bill. These are considered below, along with the Committee’s comment and recommendations.
Lowering the conviction threshold
As noted in the previous chapter, the current section 35A of the Act makes citizenship cancellation conditional on a number of factors including that a person must have been convicted of a specified offence that carries a penalty of no less than a maximum 10 years imprisonment.
Although the Bill retains this requirement for relevant other convictions (espionage, sabotage and foreign interference), the inclusion of an offence against section 102.8 of the Criminal Code (associating with a terrorist organisation) as part of a relevant terrorism conviction, reduces this requirement to a maximum penalty of three years imprisonment for that specific offence. All other relevant terrorism conviction offences maintain at least a ten year maximum penalty. Currently, section 102.8 of the Criminal Code is expressly excluded from section 35A of the Act.
The Department of Home Affairs justified the inclusion of this lower threshold in its submission to the Committee. It said that inclusion of the offence
recognises the serious nature of knowingly associating with a terrorist organisation, on multiple occasions, for the purposes of supporting its expansion or continued existence, in light of the current and evolving terrorism threat.
In its Advisory Report on the Allegiance to Australia Bill the Committee considered that
revocation of citizenship under proposed section 35A should only follow appropriately serious conduct that demonstrates a breach of allegiance to Australia.
the provision should more appropriately target the most serious conduct that is closely linked to a terrorist threat. Accordingly, the Committee recommends removal of offences with a maximum penalty of less than 10 years imprisonment and certain Crimes Act offences that have never been used.
Many submitters expressed concern with the inclusion of section 102.8 of the Criminal Code (associating with a terrorist organisation) as part of a relevant terrorism conviction.
Dr Rayner Thwaites stated that inclusion of this offence is
likely to bring considerable legal and practical difficulties in its wake. Its "potential capture of a wide range of legitimate activities" can be predicted to be counterproductive in securing widespread community engagement with counter-terrorism measures.
Submitters’ broader concerns are encapsulated by the Australian Human Rights Commission (AHRC) who argued that the
three year maximum penalty for committing the offence of associating with a terrorist organisation also indicates that Parliament considers it a much lower order offence than the other offences set out in proposed s 35A(1A) which could result in up to ten years’ imprisonment.
The Commission considers that the inclusion of the less serious offence of ‘associating’, within the ambit of the citizenship-stripping powers, has not been demonstrated to be reasonable, necessary or proportionate.
Lowering of sentencing threshold
The Bill proposes to remove the requirement that the person has, in respect of the conviction or convictions, been sentenced to a period of at least six years, or to periods of imprisonment that total at least six years. This amendment only relates to relevant terrorism convictions. The Bill maintains that individuals convicted of relevant other convictions (espionage, sabotage and foreign interference) must continue to have been sentenced to a single or cumulative period of at least six years’ imprisonment in respect of the conviction or convictions in order to have their citizenship revoked.
The Explanatory Memorandum states that:
It is no longer the intention that the minimum 6 years’ sentence period applies to persons with a relevant terrorism conviction. The effect of this is that the Australian citizenship of any person convicted of a relevant terrorism offence on or after 12 December 2005 will be subject to cessation of citizenship under new subsection 35A(1) (see item 4). In light of the evolving terrorist threat, the Government considers it appropriate that the Minister be able to consider for cessation of citizenship all persons convicted of a terrorist offence after 12 December 2005, as conduct which poses harm to the Australian community. This includes, for example, offences against section 102.8 of the Criminal Code in relation to associating with a terrorist organisation for the purposes of supporting the terrorist organisation to expand or continue to exist; an offence which carries a maximum penalty of 3 years’ imprisonment.
The six year minimum sentence was included in the Australian Citizenship Act 2007 to reflect the Committee’s concerns outlined in its Allegiance to Australia Report. The Committee recommended that citizenship could not be revoked unless the person was convicted of a relevant offence with a sentenced applied of at least six years imprisonment, or multiple sentences totalling at least six years’ imprisonment.
As with the lowering of the conviction threshold discussed above, a number of submitters raised concerns with the lowering of the sentencing threshold. For example Australian Lawyers for Human Rights stated that
the removal of the prerequisite relating to a minimum sentence and term of imprisonment before a person is considered for loss of citizenship undermines judicial discretion and the determinations of the criminal justice system, for example in circumstances where the criminal law system has already found a person to be of minimal risk to the Australian community and therefore has imposed a very short sentence, or no sentence or term of imprisonment. Removing the prerequisite which demonstrates the seriousness of the relevant crime or crimes means that the legislation is no longer clearly proportionate to the offence.
The Law Council of Australia noted that the six year penalty only applying to relevant other offences and not to relevant terrorism offences appeared to be arbitrary. It noted that ‘relevant other convictions such as those for espionage offences can carry significant penalties just as terrorism offences can and, arguably, both kinds of offences may evidence that a person has repudiated his or her allegiance to Australia (the constitutional grounding for the Act)’.
Under Article 15 of the Universal Declaration of Human Rights, every individual has a right to a nationality. Australia is a State Party to the 1954 Convention relating to the Status of Stateless Persons (the 1954 Convention), and the 1961 Convention on the Reduction of Statelessness (the Statelessness Convention). The United Nations High Commissioner for Refugees explained that the Statelessness Convention’s purpose
is to prevent and reduce statelessness, thereby guaranteeing every individual’s right to a nationality. Consequently, Australia has an obligation to take measures to avoid statelessness.
Submitters raised concerns that the proposed new powers under section 35A of the Act risk contravening Australia’s obligations under the Statelessness Convention. In particular, submitters noted that the amendment to allow for citizenship deprivation in cases where the Minister is satisfied that the citizen concerned would not, through revocation, ‘become a person who is not a national or citizen of any country’, may lead to a person becoming stateless.
The Department argued that such a lowering of the threshold was
consistent with the existing provision in paragraph 34(3)(b) of the Citizenship Act, which provides the Minister must not revoke a person’s citizenship on the basis of certain offences if satisfied that the person would become someone who is not a national or citizen of any country.
Some submitters disagreed with this characterisation of the proposed new power. For example, Professor Helen Irving argued that section 34 of the Act
concerns the revocation of citizenship acquired by conferral, and applies to persons who commit offences or fraud in relation to or during the process of applying for citizenship. It indicates that the Australian citizenship of such persons was not obtained or held validly. Their situation is importantly different from cases where a person holds Australian citizenship that has been acquired legitimately under Australian law.
A number of submitters also commented on the possibility that, if not accepted by a second country a person could become subject to indefinite immigration detention.
The Department of Home Affairs gave evidence that Bill was compliant with international law and advice was provided to the Department of Home affairs by the Chief General Counsel of the Australian Government Solicitor(AGS) and Office of International Law at AGS.
Neither the Bill’s Explanatory Memorandum, nor the Department’s submission, deal with the issue of constitutionality. In the Advisory Report on the Allegiance to Australia Bill, the Committee noted that the Explanatory Memorandum to 2015 Bill
states that ‘the principal source of power for a person’s Australian citizenship ceasing is the aliens power in section 51(xix) of the Constitution’. In so doing, the Bill relies on the concept that an ‘alien’ is ‘a person lacking allegiance to Australia’. However, there has not yet been a High Court case in which it has been necessary for the Court to decide the constitutional meaning of ‘alienage’, or for it to determine the ‘outer limits’ of Parliament’s power under section 51(xix).
A number of submissions and witnesses discussed the constitutional validity of the Bill. The submitters expressed concerns in relation to two key constitutional questions:
the Commonwealth’s ability to legislate to remove citizenship, especially in cases relating to minor conduct with no necessary disloyalty element, and
the proportionality of any removal of citizenship.
These points are encapsulated by Professor George Williams and Dr Sangeetha Pillai as follows:
Removing the minimum sentencing threshold for citizenship loss on the ground of a ‘relevant terrorism conviction’ would increase the risk that the scheme would infringe the principle established in Roach v Electoral Commissioner. This is because passage of the Bill would mean that the manner in which the scheme pursues its purpose of fostering national security is less likely to be considered proportionate.
Removing the minimum sentencing threshold decreases the likelihood that s 35A will be found to be ‘with respect to’ one of the Commonwealth’s heads of power. This is because extending the Minister’s citizenship revocation powers to apply in cases where a person has committed more minor conduct with no necessary disloyalty element is likely to weaken s 35A’s connection with both the aliens power in s 51(xxix) and the defence power in s 51(vi).
Extending the Minister’s citizenship revocation powers to cases where the Minister is satisfied that the citizen concerned would not, through revocation, ‘become a person who is not a national or citizen of any country’ would increase the likelihood of s 35A overstepping constitutional boundaries. This would weaken s 35A’s connection with the aliens power.
In addition the Australian Human Rights Commission raised the issue of whether removal of citizenship was punitive and thus a penalty that could only be imposed by a court acting under jurisdiction conferred by Chapter 3 of the Constitution.
These issues were discussed extensively in Chapter 3 of the Allegiance to Australia Report. It its comment, the Committee stated that some members of the Committee held concerns about the ability of the proposed legislation to withstand constitutional challenge and that these members considered that
although it is ultimately a matter for the High Court to determine the constitutionality of any Bill, it is incumbent on governments and parliamentarians to legislate in a manner which minimises the risk of a successful constitutional challenge. This is particularly so where the Parliament is considering national security legislation that impacts on the fundamental rights of individuals.
The Senate Scrutiny of Bills Committee set out the issue around judicial review when it stated:
While the minister's decision would be subject to judicial review, merits review of the decision is not available. The proposed amendments enable citizenship to be removed if the minister 'is satisfied' that the person would not become a person who is not a national or citizen of any country. Although the exercise of this determination would be subject to a requirement of legal reasonableness, there would be limited scope for the minister’s opinion to be reviewed. For this reason, the intensity of permissible judicial review would be considerably lower than is allowable under the current provision, which requires that 'the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination'. Under the current provision, the question of whether a person is a national or citizen of another country is a jurisdictional fact that could be reviewed by the court for correctness, rather than merely on the basis of whether the minister's opinion on the question was formed reasonably.
The Explanatory Memorandum states that:
The right to a fair trial and fair hearing are not in any way affected or limited by the proposed amendments. In any judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised according to law. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met.
A number of submitters expressed concern around the issue of judicial review. In particular they referred to the statement by the Senate Scrutiny of Bills Committee that 'the intensity of permissible judicial review would be considerably lower than is allowable under the current provision'.
Professor Williams and Dr Pillai stated that
Currently, the question of whether a person who has lost their Australian citizenship holds citizenship of a foreign country can be reviewed by a court as a question of jurisdictional fact. Under the proposed change, the only judicial review ground available will be the more limited reasonableness ground.
Similarly Professor Helen Irving pointed out that ‘[F]actual error in deciding that a person holds foreign citizenship and will not be rendered stateless by revocation of their Australian citizenship may, thus, remain uncorrected.’
The Professor Kim Rubenstein, Associate Professor Matthew Zagor and Dr Dominique Dalla-Pozza recommended that
the Bill be amended to provide a right to full merits review of any decision regarding deprivation of nationality by adding s 35A to the decisions where merits review is available (by amending s 52 of the Australian Citizenship Act 2007).
Current section 35A of the Act applies retrospectively. An individual convicted of a specified offence between 12 December 2005 and 12 December 2015 may have their citizenship cancelled, but only if the person was sentenced to a period of imprisonment of at least 10 years in respect of that conviction.
The Bill proposes maintaining the same principle for relevant other convictions (espionage, sabotage and foreign interference). However, in the case of relevant terrorism convictions, the Bill abolishes the 10 year minimum sentence requirement. Proposed section 4 of the Bill enables citizenship cancellation in cases where an individual received a relevant terrorism conviction on or after 12 December 2005, regardless of the duration of their sentence. The Bill imposes no minimum sentence requirement.
In its Advisory Report on the Allegiance to Australia Bill, the Committee considered the issue of section 35A having a retrospective application and found that
on balance the Committee determined these to be special circumstances. The Committee formed the view that past terrorist–related conduct, to which persons have been convicted under Australian law, is conduct that all members of the Australian community would view as repugnant and a deliberate step outside of the values that define our society.
However, the Committee recommended that section 35A only apply retrospectively ‘to convictions for relevant offences where sentences of ten years or more have been handed down by a court.’
A number of submitters raised concerns with the proposed amendment to the retrospective application of the Bill, in particular, the abolition of the 10 year minimum sentence safeguard for relevant terrorism convictions. As one example the Australian Human Rights Commission submitted that
The retrospective application of the citizenship removal powers in the Allegiance Act was restricted to individuals who had been convicted of a relevant offence, with a term of at least ten years imprisonment in the ten years prior to the passage of that Act. This implemented a recommendation made by the PJCIS. It is unclear why the implementation of that PJCIS recommendation is now being reversed.
Removing the ten year imprisonment requirement risks lessening the proportionality of the limitation on human rights, given that the severe consequences of citizenship removal could be applied to persons who have been assessed by a court as having comparatively lower culpability.
In its Advisory Report on the Allegiance to Australia Bill the Committee recommended that
the Intelligence Services Act 2001 be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a review of the revocation of citizenship provisions in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by 1 December 2019.
Section 29(1)(ca) of the Intelligence Services Act 2001 was amended as recommended by the Committee. This amendment made it a function of the Committee to review, by 1 December 2019, the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections.
It is important that the additional provisions proposed by this Bill are reviewed to determine their operation as intended, their effectiveness in helping to protect the Australian community, and their implications and any unintended consequences that may have become apparent.
Therefore the Committee recommends that section 29(1)ca) of the Intelligence Services Act 2001, be amended to require that the Committee complete its review of the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections, by 1 December 2020 (rather than 1 December 2019).
The Committee recommends that section 29(1)ca) of the Intelligence Services Act 2001, be amended so to require that the Committee review the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections, by 1 December 2020.
The Committee notes that section 51((3) of the Australian Citizenship Act 2007 (Citizenship Act) requires the Minister, if requested by the Committee, to arrange for the Committee to be briefed where, as set out in section 51((1) of the Citizenship Act, the Minister
gives or unsuccessfully attempts to give a notice under paragraph 33AA(10)(a) or 35(5)(a);
gives or unsuccessfully attempts to give a notice under paragraph 35A(5)(a);
makes a determination under subsection 33AA(12), 35(7) or 35A(7).
The Committee confirms its standing request to the Department of Home Affairs and other relevant agencies, as per section 51C(4) of the Citizenship Act, for detailed written briefs to accompany the notifications provided to the Committee when the Minister does any of the above.
It is the expectation of the Committee that these written briefs would cover matters set out in section 51C(5) of the Citizenship Act. This will assist the Committee in determining if there are outstanding matters on which it may require an oral briefing.
Subject to implementation of the recommendations made here, the Committee recommends that the Bill be passed.
Subject to implementation of the Committee’s recommendations, the Committee recommends that the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 be passed.